For donor offspring, another round in the legal battle to know their parentage

February 12, 2012

WENDY STUECK

A landmark case that pits the privacy rights of people who donate eggs or sperm against those of their potential offspring to know their biological parentage will be back in court Tuesday.

The B.C. Court of Appeal is scheduled to hear an appeal of a 2011 ruling that declared B.C.'s Adoption Act unconstitutional because it didn't give people born of donated eggs or sperm the same rights as it provided to people who were adopted.

For Olivia Pratten, whose desire to learn about her biological heritage pushed the issue into court, the appeal is another step in a legal odyssey that has implications for lives far beyond her own.

"It's not about my situation, it's about a larger issue," Ms. Pratten said on Friday.

Last year, Madam Justice Elaine Adair of the Supreme Court of British Columbia found existing laws mean donor offspring don't have the same rights to learn about their biological parentage as those who are adopted.

Concluding the law was unconstitutional, the judge gave the province 15 months to rewrite the legislation. She also granted a permanent injunction that prohibits destroying donor records or transferring them out of the province.

The case came about after Ms. Pratten, whose parents turned to artificial insemination when they were unable to conceive, tried to find out more about the person who provided one half of her genetic makeup.

As recounted in last year's reasons for judgment, Ms. Pratten in 2001 visited the doctor – Gerald Korn of Vancouver – who conducted the artificial insemination procedure for her mother and asked him for information.

"Dr. Korn jotted down some information on a notepad: her donor was a Caucasian medical student who had a stocky build, brown hair, blue eyes and type A blood," the judgment says. "Dr. Korn advised that the donor 'was healthy.' He would reveal no further information. This is all of the information Ms. Pratten has about her biological father."

Ms. Pratten, now 29 and working as a journalist in Toronto, launched her case as a potential class-action suit in 2008. The same year, a judge issued an interim injunction prohibiting the destruction of donor records. The case went ahead as an ordinary suit in 2010, with the Attorney-General of B.C. and the College of Physicians and Surgeons of B.C. named as defendants.

After the judgment, the province filed an appeal in June of last year.

Ms. Pratten concedes she likely won't get the answers she wanted. When Dr. Korn retired in 2002, he was not required to keep patient records for more than six years and he has said her donor's records have been destroyed. Her focus now, she said, is on reforming practices so other donor offspring won't face the same outcome.

"There has to be accountability," she said.

In her ruling last year, Judge Adair said donor offspring "experience sadness, frustration, depression and anxiety – in other words, they suffer psychological and psychosocial difficulties – when they are unable to obtain information."

Donor offspring also fear that they could inadvertently wind up in a romantic relationship with a half-sibling.

In court, lawyers for the province argued that important policy decisions should not be left to the courts. There are also concerns that lifting the ban on donor anonymity would result in fewer donations.

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